179 Ill. 283 | Ill. | 1899
The opinion of the Appellate Court, as delivered by Mr. Justice Dibell, is as follows:
“We are of opinion appellant was not entitled to a jury trial. We regard that question as settled for proceedings of this character by Martin v. Martin, 170 Ill. 18. In that case, as in this, a party entitled to share in the estate applied to the probate court to compel the executors to inventory personalty which one of them claimed to own. That case holds the proceeding is an equitable one; that the Practice act, and its provisions for jury trials and for propositions of law where juries are waived, does not apply. The probate court tries questions relating to the inventories and accounts of executors, administrators aud guardians in a summary manner and without a jury. (Maynard v. Richards, 166 Ill. 466.) Appellant herself invoked the exercise of this summary jurisdiction. There are other reasons why the refusal of appellant’s motion was not error.
“The second question proposed for the jury was one which there can be no reasonable claim appellant had a right to have so submitted in a proceeding begun by her in the probate court. The first question proposed,—that is, whether Peter Coffey, on January 7 and 8, 1895, was of a sound and disposing mind and memory,—did not present the question which was in fact in controversy. Even if the executor had claimed Peter made a gift of these shares to him on January 7 and 8,1895, still the true issue could not be whether Peter was generally of a sound and disposing mind and memory at that date, but whether he had sufficient mind and memory to understand the particular business in which he was then engaged in giving said shares to Thomas. But the claim of the executor was that on June 4, 1887,—two days after he made the will which was probated,—Peter executed a trust instrument making Thomas a trustee of certain shares of stock (being substantially those now in question) for certain purposes in said instrument set forth, and that Thomas on that day accepted said trust in writing, and that on January 7 and 8, 1895, said Peter Coffey completed the erection of the trust by directing and causing said shares, or other shares in their place, to be transferred to Thomas on the books of the gas company. Manifestly, the completion of an arrangement made in writing seven and a half years before, by directing or authorizing a transfer on the company’s books of shares to the trustee so previously appointed and upon trusts so previously fixed, was a transaction which might call for the exercise of much less memory and mental exertion than the making of a new disposition of said shares at the later date. If Peter’s direction to transfer the shares was vital to the validity of the title by which Thomas now claims to hold them in trust, then the true question was whether Peter Coffey, on January 7 and 8, 1895, had sufficient mind and memory to complete the trust arrangement (which had been put in writing by him, with all details, in 1887,) by authorizing the transfer of shares on the books of the company. The question appellant asked the circuit court to submit to a jury did not fairly present the true issue to be determined, and a negative answer to it would not necessarily have been decisive of the true issue. She cannot assign for error that some other issue than that she requested should have been submitted to a jury.
“Thomas Coffey was offered as a witness in his own behalf in the circuit court, and appellant denied his competency. The trial judge heard his evidence subject to objection, and afterwards excluded it. In chancery cases it is not error to permit incompetent evidence to be heard before the judge without a jury, subject to objection; and even if no ruling against it is made, the court will be presumed to have acted upon the competent testimony in the record. (Gordon v. Reynolds, 114 Ill. 118; Peabody v. Kimball, 145 id. 519.) This being the rule, there can be no error in such a case as this in letting in the incompetent evidence, where it is afterwards excluded. We proceed to consider the case as if the evidence of Thomas Coffey was not in the record.
“It is claimed by appellant that Peter Coffey was not in a mental condition to transact business at that time. His physician testified he did not consider him competent to-transact business during the last two weeks of his life. Certain sisters from the hospitals, who nursed him, and a couple of other witnesses, were of the same opinion, and two of them testified he sometimes seemed to have hallucinations, though this had not been observed by other nurses. The physician stated, however, that Peter had no mental disease, and it is evident from the testimony of the nurses that the only defects they noticed (other than the hallucinations just referred to) were extreme weakness and the results of the laudanum. That drug produced lethargy and drowsiness about fifteen minutes after it was administered, and the effects lasted one and a half or two hours. The doctor gave the nurses a written schedule by which to administer nourishment and the laudanum and other remedies, and it shows that the laudanum was to be given at 10 A. M. and 10 P. M., ‘seventeen drops when no pain, thirty to thirty-five drops if pain.’ The proof shows laudanum was sometimes given at other times and in still larger doses if the patient was in extreme pain, but there is no proof that the patient was under the influence of that drug anywhere near all the time. The nurses and others testifying for appellant each related, on cross-examination, things Peter Coffey said during the last two or three weeks of his life, which showed him in possession of reason and intelligence. The sisters usually went out of the room when any one was there to talk with .him, and if they remained in the room did not attend to the conversation, and hence could not state the nature and extent of such conversations and his participation in them. On the other hand, the bishop and the business friends and acquaintances of the deceased called upon him at different times during that period and conversed with him, and found him very sick and very weak but intelligent and rational, and all believed him competent to understand and transact business. It is to be noted that Farrelly, the most important witness for appellee, testified against his own interest, as the will of the deceased not only gave him §5000, but also provided that the excess of Peter’s estate which might be left after satisfying the legacies therein named, amounting to about §56,000, should be divided pro rata among the legatees. No one testified Peter was under the influence of opiates at the time when he transacted his business on January 7 and 8. We have carefully considered the evidence bearing upon his mental condition at that time, and think it justifies the conclusion that he was competent to transact that business. We see no reason to doubt that he wished this last step taken so that his trust arrangement might be carried out and perfected during his lifetime, and that he intelligently comprehended and approved of what was done. This was not a new scheme then devised by him during" his last sickness, but the doing" of a merely formal and perhaps unnecessary act to more effectually carry out that which he had provided in writing in minute detail when he was in health.
“As to the 335 shares, it is by no means certain the deed of trust or conveyance would fail if it was found Peter was mentally unable, on January 7 and 8, to direct and approve of a transfer on the books of the company. Thomas presented the certificates for those shares at the gas company’s office January 8 for transfer, and they had at some previous time been endorsed in blank by Peter Coffey, and come into the manual possession of Thomas. If Thomas is not a competent witness to show when and how he received these certificates so endorsed, he is entitled to the presumption that they were properly and lawfully in his hands in that condition till the contrary appears. There is no presumption that he came by them improperly. For aught we know outside his testimony, Peter may have personally placed them in his hands, or given him the key to the box where they were, long before and expressly for the purposes of the trust, and if so, we do not doubt he would be entitled to hold them though not transferred on the books. Moreover, on the back of each certificate was a printed assignment and power of attorney to do all acts necessary to transfer said shares required by the by-laws - of said company. The places for names and dates were blank. Each was signed by Peter Coffey. Thomas Coffey’s possession of these certificates so endorsed prima facie authorized him to so fill the blanks as to make them assignments to himself and to cause them to be transferred to himself upon the books of the company, and this without any oral directions from or further action by Peter Coffey. We are unable to see that appellant rebutted the prima facie case made by the fact that Thomas Coffey produced these shares at the gas office so endorsed by Peter Coffey.
“The conclusions already stated make it unnecessary for us to decide whether Thomas was a competent witness. So far as the charitable beneficiaries in said deed of trust are concerned, he would be a competent witness for them if their interest could be separated from his. If his testimony was competent it removes every shadow of suspicion cast upon the case, and shows clearly the purpose and previous efforts of the deceased to have his trust arrangement perfected during" his life beyond all possible attack.
“We do not regard this as a donatio causa mortis, but as a gift inter vivos, carried into complete execution during the lifetime of Peter Coffey and conveying entirely beyond his reach the property in question, so that if he had recovered from the illness from which he was suffering when he took the last steps to perfect the arrangement he could not have recalled the property so given away. Therefore the question whether the rights of a widow can be defeated by a gift causa mortis, though argued, we consider is not raised by this record.
“The order of the court below is affirmed.”
Concurring in the foregoing views and in the conclusion reached by the Appellate Court, we affirm the judgment of that court.
Judgment affirmed.
